Like heartless blood sucking ghouls, chiefs, the little-knowing merciless messiahs of the system, continue to suck poor and unrepresented accused persons into crammed jails, utterly oblivious to their constitutionally entrenched fundamental right to fair trial. With charlatan confidence and myopic faith from the government (the three branches), these courts are, in effect, crushing to nothing and eating away at the essentials of justice and making ultimate nonsense out of the doctrine of the rule of law, a concept we profess to sanctify. As customary courts are manifestly tailored for the underprivileged and the not so fortunate, the injustice ferociously hits and stings the impoverished members of the society whilst the fortunate, rich and wealthy seek justice from common law courts, where there is the right to representation, rigorously trained and adequately paid judges and magistrates and justice is almost always guaranteed.
The underlying rationale and entire fabric of the institution of customary law rest on a mistaken belief. It is not only wrongly assumed that Chiefs (born or elected) are matchless repositories of customary law; it is also believed that they are well vested in basic principles of fair decision-making. It is held, wholeheartedly, as a universal truth that these men and women are born masters of substantive and procedural customary law. In fact, this fallacious mantra unfortunately boasts more than a crumb of comfort and unmerited advocacy in the empty and flat rhetoric of judicial opinions by judges of both the High Court and the Court of Appeal who, in the world's view, should know better. Notably intriguing is that while our law-makers stalwartly believe that these men and women are indeed authorities of customary law they do not bear any sensible illustrations of how it is that being a chief spontaneously anoints one with such tremendous knowledge of this so called unwritten law (is it not time to say 'partly written' considering Schapera's text and judicial decisions?). Of course, those of us who are naive and gullible are soon swindled into swallowing the colonial codswallop that they acquired this knowledge through oral tradition, it is high time we broke away from the habit of feeding on colonial-times junk. If customary law emerges from what people do and what they believe and accept to be binding on them, as it is often asserted, how do chiefs establish that a certain belief is now binding? How many tribesmen should consider it binding and where do chiefs acquire the expertise to gauge such? For instance, chiefs still consider concubines to be the bedrock of Tswana way of life, is that customary law?
